Two conservative justices on the Supreme Court appeared prepared to preserve at least some of the major components of ObamaCare, including its protections for people with preexisting conditions, as they heard arguments Tuesday in a suit challenging the law.
Chief Justice John Roberts and Justice Brett Kavanaugh seemed to express the view that if the court were to strike down the provision of the law mandating the purchase of health insurance, the rest of the law should be allowed to survive.
“Looking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place, the provisions regarding preexisting conditions and the rest,” Kavanaugh said.
The U.S. Supreme Court is set to hear a case questioning the legality of the ACA on Nov. 10.
Five things to know:
1. At the center of the case is whether the health law should be struck down. In a brief filed June 25 in Texas v. United States, the Trump administration argues the entire ACA is invalid because in December 2017, Congress eliminated the ACA’s tax penalty for failing to purchase health insurance. The administration argues the individual mandate is inseverable from the rest of the law and became unconstitutional when the tax penalty was eliminated; therefore, the entire health law should be struck down.
2. The administration’s brief was filed in support of a group of Republican-led states seeking to undo the ACA. Meanwhile, California Attorney General Xavier Becerra is leading a coalition of more Democratic states to defend the ACA before the Supreme Court.
3. The case goes before the Supreme Court days after media outlets projected Joe Biden as the next president of the U.S. President-elect Biden has said he seeks to expand government-subsidized insurance coverage and wants to the bring back the ACA’s tax penalty for failing to purchase health insurance, according to The Wall Street Journal. If a change regarding the tax penalty did occur, the publication notes that Republicans’ argument on severability would no longer apply.
4. The case also goes before the Supreme Court about two weeks after the Senate voted Oct. 26 to confirm Amy Coney Barrett to the Supreme Court. Ms. Barrett previously criticized Chief Justice John Roberts’ 2012 opinion sustaining the law’s individual mandate, The New York Times reported, but she said during her confirmation hearings in October that “the issue in the case is this doctrine of severability, and that’s not something that I have ever talked about with respect to the Affordable Care Act.”
5. According to the Journal, the Supreme Court is not expected to make a decision in the case until the end of June.
President-elect Joe Biden’s healthcare agenda: building on the ACA, value-based care, and bringing down drug prices.
In many ways, Joe Biden is promising a return to the Obama administration’s approach to healthcare:
Building on the Affordable Care Act (ACA) through incremental expansions in government-subsidized coverage
Continuing CMS’ progress toward value-based care
Bringing down drug prices
Supporting modernization of the FDA
Bolder ideas, such as developing a public option, resolving “surprise billing,” allowing for negotiation of drug prices by Medicare, handing power to a third party to help set prices for some life sciences products, and raising the corporate tax rate, could be more challenging to achieve without overwhelming majorities in both the House and the Senate.
Biden is likely to mount an intensified federal response to the COVID-19 pandemic, enlisting the Defense Production Act to compel companies to produce large quantities of tests and personal protective equipment as well as supporting ongoing deregulation around telehealth. The Biden administration also will likely return to global partnerships and groups such as the World Health Organization, especially in the area of vaccine development, production and distribution.
What can health industry executives expect from Biden’s healthcare proposals?
Broadly, healthcare executives can expect an administration with an expansionary agenda, looking to patch gaps in coverage for Americans, scrutinize proposed healthcare mergers and acquisitions more aggressively and use more of the government’s power to address the pandemic. Executives also can expect, in the event the ACA is struck down, moves by the Biden administration and Democratic lawmakers to develop a replacement. Healthcare executives should scenario plan for this unlikely yet potentially highly disruptive event, and plan for an administration marked by more certainty and continuity with the Obama years.
All healthcare organizations should prepare for the possibility that millions more Americans could gain insurance under Biden. His proposals, if enacted, would mean coverage for 97% of Americans, according to his campaign website. This could mean millions of new ACA customers for payers selling plans on the exchanges, millions of new Medicaid beneficiaries for managed care organizations, millions of newly insured patients for providers, and millions of covered customers for pharmaceutical and life sciences companies. The surge in insured consumers could mirror the swift uptake in the years following the passage of the ACA.
Biden’s plan to address the COVID-19 pandemic
Biden is expected to draw on his experience from H1N1 and the Ebola outbreaks to address the COVID-19 pandemic with a more active role for the federal government, which many Americans support. These actions could shore up the nation’s response in which the federal government largely served in a support role to local, state and private efforts.
Three notable exceptions have been the substantial federal funding for development of vaccines against the SARS-CoV-2 virus, Congress’ aid packages and the rapid deregulatory actions taken by the FDA and CMS to clear a path for medical products to be enlisted for the pandemic and for providers, in particular, to be able to respond to it.
Implications of Biden’s 2020 health agenda on healthcare payers, providers and pharmaceutical and life sciences companies
The US health system has been slowly transforming for years into a New Health Economy that is more consumer-oriented, digital, virtual, open to new players from outside the industry and focused on wellness and prevention. The COVID-19 pandemic has accelerated some of those trends. Once the dust from the election settles, companies that have invested in capabilities for growth and are moving forcefully toward the New Health Economy stand to gain disproportionately.
Shortages of clinicians and foreign medical students may continue to be an issue for a while
The Trump administration made limiting the flow of immigrants to the US a priority. The associated policy changes have the potential to exacerbate shortages of physicians, nurses and other healthcare workers, including medical students. These consequences have been aggravated by the pandemic, which dramatically curtailed travel into the US.
Healthcare organizations, especially rural ones heavily dependent on foreign-born employees, may find themselves competing fiercely for workers, paying higher salaries and having to rethink the structure of their workforces.
Providers should consider reengineering primary care teams to reflect the patients’ health status and preferences, along with the realities of the workforce on the ground and new opportunities in remote care.
Focus on modernizing the supply chain
Biden and lawmakers from both parties have been raising questions about life sciences’ supply chains. This focus has only intensified because of the pandemic and resulting shortages of personal protective equipment (PPE), pharmaceuticals, diagnostic tests and other medical products.
Investment in advanced analytics and cybersecurity could allow manufacturers to avoid disruptive stockouts and shortages, and deliver on the promise of the right treatment to the right patient at the right time in the right place.
Drug pricing needs a long-term strategy
Presidents and lawmakers have been talking about drug prices for decades; few truly meaningful actions have been implemented. Biden has made drug pricing reform a priority.
Drug manufacturers may need to start looking past the next quarter to create a new pricing strategy that maximizes access in local markets through the use of data and analytics to engage in more value-based pricing arrangements.
New financing models may help patients get access to drugs, such as subscription models that provide unlimited access to a therapy at a flat rate.
Companies that prepare now to establish performance metrics and data analytics tools to track patient outcomes will be well prepared to offer payers more sustainable payment models, such as mortgage or payment over time contracts, avoiding the sticker shock that comes with these treatments and improving uptake at launch.
Pharmaceutical and life sciences companies will likely have to continue to offer tools for consumers like co-pay calculators and use the contracting process where possible to minimize out-of-pocket costs, which can improve adherence rates and health outcomes.
View interoperability as an opportunity to embrace, not a threat to avoid or ignore
While the pandemic delayed many of the federal interoperability rule deadlines, payers and providers should use the extra time to plan strategically for an interoperable future.
Payers should review business partnerships in this new regulatory environment.
Digital health companies and new entrants may help organizations take advantage of the opportunities that achieving interoperability may present.
Companies should consider the legal risks and take steps to protect their reputations and relationships with customers by thinking through issues of consent and data privacy.
Health organizations should review their policies and consider whether they offer protections for customers under the new processes and what data security risks may emerge. They should also consider whether business associate agreements are due in more situations.
Plan for revitalized ACA exchanges and a booming Medicare Advantage market
The pandemic has thrown millions out of work, generating many new customers for ACA plans just as the incoming Biden administration plans to enrich subsidies, making more generous plans within reach of more Americans.
Payers in this market should consider how and where to expand their membership and appeal to those newly eligible for Medicare. Payers not in this market should consider partnerships or acquisitions as a quick way to enter the market, with the creation of a new Medicare Advantage plan as a slower but possibly less capital-intensive entry into this market.
Payers and health systems should use this opportunity to design more tailored plan options and consumer experiences to enhance margins and improve health outcomes.
Payers with cash from deferred care and low utilization due to the pandemic could turn to vertical integration with providers as a means of investing that cash in a manner that helps struggling providers in the short term while positioning payers to improve care and reduce its cost in the long term.
Under the Trump administration, the FDA has approved historic numbers of generic drugs, with the aim of making more affordable pharmaceuticals available to consumers. Despite increased FDA generics approvals, generics dispensed remain high but flat, according to HRI analysis of FDA data.
Pharmaceutical company stocks, on average, have climbed under the Trump administration, with a few notable dips due to presidential speeches criticizing the industry and the pandemic.
Providers have faced some revenue cuts, particularly in the 340B program, and many entered the pandemic in a relatively weak liquidity position. The pandemic has led to layoffs, pay cuts and even closures. HRI expects consolidation as the pandemic continues to curb the flow of patients seeking care in emergency departments, orthopedic surgeons’ offices, dermatology suites and more.
Lawmakers and politicians often use bold language, and propose bold solutions to problems, but the government and the industry itself resists sudden, dramatic change, even in the face of sudden, dramatic events such as a global pandemic. One notable exception to this would be a decision by the US Supreme Court to strike down the ACA, an event that would generate a great deal of uncertainty and disruption for Americans, the US health industry and employers.
The financial challenges caused by the COVID-19 pandemic have forced hundreds of hospitals across the nation to furlough, lay off or reduce pay for workers, and others have had to scale back services or close.
Lower patient volumes, canceled elective procedures and higher expenses tied to the pandemic have created a cash crunch for hospitals. U.S. hospitals are estimated to lose more than $323 billion this year, according to a report from the American Hospital Association. The total includes $120.5 billion in financial losses the AHA predicts hospitals will see from July to December.
Hospitals are taking a number of steps to offset financial damage. Executives, clinicians and other staff are taking pay cuts, capital projects are being put on hold, and some employees are losing their jobs. More than 260 hospitals and health systems furloughed workers this year and dozens of others have implemented layoffs.
Below are 11 hospitals and health systems that announced layoffs since Sept. 1, most of which were attributed to financial strain caused by the pandemic.
1. NorthBay Healthcare, a nonprofit health system based in Fairfield, Calif., is laying off 31 of its 2,863 employees as part of its pandemic recovery plan, the system announced Nov. 2.
2. Minneapolis-based Children’s Minnesota is laying off 150 employees, or about 3 percent of its workforce. Children’s Minnesota cited several reasons for the layoffs, including the financial hit from the COVID-19 pandemic. Affected employees will end their employment either Dec. 31 or March 31.
3. Brattleboro Retreat, a psychiatric and addiction treatment hospital in Vermont, notified 85 employees in late October that they would be laid off within 60 days.
4. Citing a need to offset financial losses, Minneapolis-basedM Health Fairview said it plans to downsize its hospital and clinic operations. As a result of the changes, 900 employees, about 3 percent of its 34,000-person workforce, will be laid off.
5. Lake Charles (La.) Memorial Health Systemlaid off 205 workers, or about 8 percent of its workforce, as a result of damage sustained from Hurricane Laura. The health system laid off employees at Moss Memorial Health Clinic and the Archer Institute, two facilities in Lake Charles that sustained damage from the hurricane.
6. Burlington, Mass.-based Wellforce laid off 232 employees as a result of operating losses linked to the COVID-19 pandemic. The health system, comprising Tufts Medical Center, Lowell General Hospital and MelroseWakefield Healthcare,experienced a drastic drop in patient volume earlier this year due to the suspension of outpatient visits and elective surgeries. In the nine months ended June 30, the health system reported a $32.2 million operating loss.
7. Baptist Health Floyd in New Albany, Ind., part of Louisville, Ky.-based Baptist Health, eliminated 36 positions. The hospital said the cuts, which primarily affected administrative and nonclinical roles, are due to restructuring that is “necessary to meet financial challenges compounded by COVID-19.”
8. Cincinnati-based UC Health laid off about 100 employees. The job cuts affected both clinical and non-clinical staff. A spokesperson for the health system said no physicians were laid off.
9. Mercy Iowa City(Iowa) announced in September that it will lay off 29 employees to address financial strain tied to the COVID-19 pandemic.
10. Springfield, Ill.-based Memorial Health Systemlaid off 143 employees, or about 1.5 percent of the five-hospital system’s workforce. The health system cited financial pressures tied to the pandemic as the reason for the layoffs.
11. Watertown, N.Y.-based Samaritan Healthannounced Sept. 8 that it laid off 51 employees and will make other cost-cutting moves to offset financial stress tied to the COVID-19 pandemic.
Dr. Philip R. Lee, who as a number one federal well being official and fighter for social justice below President Lyndon B. Johnson wielded authorities Medicare money as a cudgel to desegregate the nation’s hospitals within the Sixties, died on Oct. 27 in a hospital in Manhattan. He was 96.
The trigger was coronary heart arrhythmia, his spouse, Dr. Roz Lasker, mentioned.
From his workplace at the Department of Health, Education and Welfare, because the assistant secretary for well being and scientific affairs from 1965 to 1969, Dr. Lee engineered the introduction of Medicare, which was established for older Americans in 1965, one 12 months after Johnson had bulldozed his landmark civil-rights invoice via Congress.
“To Phil, Medicare wasn’t just a ‘big law’ expanding coverage; it was a vehicle to address racial and economic injustice,” his nephew Peter Lee, the manager director of Covered California, which runs the state’s well being care market below the Affordable Care Act, was quoted as saying in a tribute by the University of California, San Francisco. Dr. Lee was the college’s chancellor from 1969 to 1972, after leaving the Johnson administration.
Dr. Lee’s use of Medicare funding to desegregate hospitals “changed the economic lives of millions of seniors,” Mr. Lee added.
Provisions within the Medicare laws subjected 7,000 hospitals nationwide to guidelines barring discrimination towards sufferers on the premise of race, creed or nationwide origin. The regulation required equal remedy throughout the board — from medical and nursing care to mattress assignments and cafeteria and restroom privileges — and barred discrimination in hiring, coaching or promotion.
Before the regulation took impact in 1966, fewer than half the hospitals within the nation met the desegregation commonplace and fewer than 25 p.c did within the South.
“I remember during one of my visits,” Dr. Lee instructed the journal of the American Society on Aging in 2015, “a cardiologist at Georgia Baptist Hospital told me, ‘Well, you know, Dr. Lee, if I put a nigger in with one of my white patients, it would kill the patient. My patient would die of a heart attack.’”
By February 1967, a 12 months or much less after many of the regulation’s provisions had taken impact, 95 p.c of hospitals have been compliant, Dr. Lee mentioned.
“He was largely responsible for that effort,” mentioned Professor David Barton Smith of Drexel University and writer of “The Power to Heal: Civil Rights, Medicare and the Struggle to Transform America’s Health System” (2016).
Dr. Lee hailed from a household of physicians — his father and 4 siblings have been medical doctors — and whereas working within the Palo Alto Medical Clinic (now the Palo Alto Medical Foundation), which his father based, he noticed firsthand the consequences on the poor and the aged of insufficient well being care and the shortage of insurance coverage protection.
As early as 1961, he was a guide on growing older to the Santa Clara Department of Welfare in California, and as a member of the American Medical Association and a Republican at the time, he defied each the A.M.A. and his celebration in testifying earlier than Congress on behalf of a precursor to Medicare that might have helped pay for hospital and nursing dwelling care via Social Security for sufferers over 65.
Dr. Lee was branded a socialist and a Communist (irrespective of that he had served as a physician within the Korean War).
In 1987, after main the University of California, San Francisco, and heading well being coverage and analysis packages there as a professor of social drugs, he additional riled fellow physicians when, as chairman of Congressional fee, he really helpful a standardized nationwide restrict on how a lot medical doctors enrolled within the Medicare program, with an enormous pool of sufferers obtainable to them, might cost above a set schedule.
He was referred to as again to Washington in 1993, once more to be an assistant secretary, this time of the renamed Department of Health and Human Services below the Clinton administration. Serving till 1997, he suggested the White House on its in the end failed effort on well being care reform.
In 2015 he endorsed the Obama administration’s Affordable Care Act and steered that the nation might go even additional in guaranteeing common well being care.
“In 1967, President Johnson said we would continue to work until equality of treatment is the rule,” Dr. Lee wrote in Generations: Journal of the American Society on Aging. “By making Medicare an option for all Americans, the kind of care I receive could be available to everyone.”
Philip Randolph Lee was born in San Francisco on April 17, 1924, to Dr. Russell Van Arsdale Lee, who had lobbied for nationwide medical insurance as a member of a fee appointed by President Harry S. Truman, and Dorothy (Womack) Lee, an newbie musician.
His curiosity in drugs, he instructed Stanford Medicine Magazine in 2004, “began with house calls with my dad from the age of 6 or 7.”
He earned his bachelor’s and medical levels at Stanford University in 1945 and 1948. As a member of the Naval Reserve, he was on lively responsibility as a physician at the top of World War II and once more from 1949 to 1951, through the Inchon invasion in Korea. He obtained a grasp of science diploma from the University of Minnesota in 1955 and had fellowships at the Rusk Institute of Rehabilitation Medicine in New York and the Mayo Clinic.
“Phil moved from clinical medicine to health policy and then devoted his life to addressing issues at the nexus of civil rights, social justice and health,” Dr. Lasker, his spouse, mentioned in an e-mail.
His distinguished function in shaping Medicare and different federal well being insurance policies was preceded by a stint, 1963-65, as director of well being for the Agency for International Development. As chancellor of the University of California, San Francisco, he was credited with rising racial variety amongst its workers, college and pupil physique.
He was additionally lauded for his aggressive function in confronting the AIDS epidemic because the president of the newly-formed Health Commission of the City and County of San Francisco from 1985 to 1989.
The writer of a half-dozen books, Dr. Lee was an early critic of the pharmaceutical trade in “Pills, Profits and Politics” (1974, with Milton Silverman).
In swing states from Georgia to Arizona, the Affordable Care Act — and concerns over protecting preexisting conditions — loom over key races for Congress and the presidency.
“I can’t even believe it’s in jeopardy,” says Noshin Rafieei, a 36-year-old from Phoenix. “The people that are trying to eliminate the protection for individuals such as myself with preexisting conditions, they must not understand what it’s like.”
In 2016, Rafieei was diagnosed with colon cancer. A year later, her doctor discovered it had spread to her liver.
“I was taking oral chemo, morning and night — just imagine that’s your breakfast, essentially, and your dinner,” Rafieei says.
In February, she underwent a liver transplant.
Rafieei does have health insurance now through her employer, but she fears whether her medical history could disqualify her from getting care in the future.
“I had to pray that my insurance would approve of my transplant just in the nick of time,” she says. “I had that Stage 4 label attached to my name and that has dollar signs. Who wants to invest in someone with Stage 4?”
“That is no way to feel,” she adds.
After doing her research, Rafieei says she intends to vote for Joe Biden, who helped get the ACA passed in this first place.
“Health care for me is just the driving factor,” she says.
Even 10 years after the Affordable Care Act locked in a health care protection that Americans now overwhelmingly support — guarantees that insurers cannot deny coverage or charge more based on preexisting medical conditions — voters once again face contradicting campaign promises over which candidate will preserve the law’s legacy.
A majority of Democrats, independents and Republicans say they want their new president to preserve the ACA’s provision that protects as many as 135 million people from potentially being unable to get health care because of their medical history.
President Trump has pledged to keep this in place, even as his administration heads to the U.S Supreme Court the week after Election Day to argue the entire law should be struck down.
“We’ll always protect people with preexisting,” Trump said in the most recent debate. “I’d like to terminate Obamacare, come up with a brand new, beautiful health care.”
And yet the Trump administration has not unveiled a health care plan or identified any specific components it might include. In 2017, the administration joined with congressional Republicans to dismantle the Affordable Care Act, but none of the GOP-backed replacement plans could summon enough votes. The Republicans’ final attempt, a limited “skinny repeal” of parts of the ACA, failed in the Senate because of resistance within their own party.
In an attempt to reassure wary voters, Trump recently signed an executive order that asserts protections for preexisting conditions will stay in place, but legal experts say this has no teeth.
“It’s basically a pinky promise, but it doesn’t have teeth,” says Swapna Reddy, a clinical assistant professor at Arizona State University’s College of Health Solutions. “What is the enforceability? The order really doesn’t have any effect because it can’t regulate the insurance industry.”
Since the 2017 repeal and replace efforts, the health care law has continued to gain popularity.
Public approval is now at an all-time high, but polling shows many Republicans still don’t view the ACA as synonymous with its most popular provision — protections for preexisting conditions.
Democrats hope to change that.
“If you have a preexisting condition — heart disease, diabetes, breast cancer — they are coming for you,” said Biden’s running mate, California Sen. Kamala Harris, during her recent debate with Vice President Pence.
Voters support maintaining ACA’s legal protections
In key swing states, many voters say protecting preexisting conditions is their top health concern.
Rafieei, the Phoenix woman with colon cancer, still often has problems getting her treatments covered. Her insurance has denied medications that help quell the painful side effects of chemotherapy or complications related to her transplant.
“During those chemo days, I’d think, wow, I’m really sick, and I just got off the phone with my pharmacy and they’re denying me something that could possibly help me,” she says.
Because of her transplant, she will be on medication for the rest of her life, and sometimes she even has nightmares about being away and running out of it.
“I will have these panic attacks like, ‘Where’s my medicine? Oh my god, I have to get back to get my medicine?'”
Election season and talk of eliminating the ACA has not given Rafieei much reassurance, though.
“I cannot stomach politics. I am beyond terrified,” she says.
And yet she plans to head to the polls — in person — despite having a compromised immune system.
“It might be a long day. But you know what? I want to fix whatever I can,” she says.
A few days after she votes, she’ll get a coronavirus test and go in for another round of surgery.
A key health issue in political swing states
Rafieei’s home state of Arizona is emblematic of the political contradictions around the health care law.
The Republican-led state reaped the benefits of the ACA. Arizona’s uninsured rate dropped considerably since 2010, in part because it expanded Medicaid.
But the state’s governor also embraced the Republican effort to repeal and replace the law in 2017, and now Arizona’s attorney general is part of the lawsuit that will be heard by the Supreme Court on Nov. 10 that could topple the entire law.
Depending on how the Supreme Court rules, ASU’s Reddy says any meaningful replacement for preexisting conditions would involve Congress and the next president.
“At the moment, we have absolutely no national replacement plan,” she says.
Meanwhile, some states have passed their own laws to maintain protections for preexisting conditions, in the event the ACA is struck down. But Reddy says those vary considerably from state to state.
For example, Arizona’s law, passed just earlier this year, only prevents insurers from outright denying coverage — consumers with preexisting conditions can be charged more.
“We are in this season of chaos around the Affordable Care Act,” says Reddy. “From a consumer perspective, it’s really hard to decipher all these details.”
As in the congressional midterm election of 2018, Democrats are hammering away at Republican’s track record on preexisting conditions and the ACA.
In Arizona, Mark Kelly, the Democratic candidate running for Senate, has run ads and used every opportunity to remind voters of Republican Sen. Martha McSally’s votes to repeal the law.
In Georgia, Democratic challenger Jon Ossoff has taken a similar approach.
“Can you look down the camera and tell the people of this state why you voted four times to allow insurance companies to deny us health care coverage because we may suffer from diabetes or heart disease or have cancer in remission?” Ossoff said during a debate with his opponent, Republican Sen. David Purdue.
Republicans have often tried to skirt health care as a major issue this election cycle because there isn’t the same political advantage to pushing the repeal and replace argument, says Mark Peterson, a professor of public policy, political science and law at UCLA.
“It’s political suicide, there doesn’t seem to be any real political advantage anymore,” says Peterson.
But the timing of the Supreme Court case — exactly a week after election day — has somewhat obscured the issue for voters.
Republicans have chipped away at the health care law by reducing the individual mandate — the provision requiring consumers to purchase insurance — to zero dollars.
The premise of the Supreme Court case is that the ACA no longer qualifies as a tax because of this change in the penalty.
“It is an extraordinary stretch, even among many conservative legal scholars, to say that the entire law is predicated on the existence of an enforced individual mandate,” says Peterson.
The court could rule in a very limited way that does not disrupt the entire law or protections for preexisting conditions, he says.
Like many issues this election, Peterson says there is a big disconnect between what voters in the two parties believe is at stake with the ACA.
“Not everybody, particularly Republicans, associates the ACA with protecting preexisting conditions,” he says. “But it is pretty striking that overwhelmingly Democrats and Independents do — and a number of Republicans — that’s enough to give a significant national supermajority.”
HENRY KOTULA 